C.S.H.B. 729 78(R)    BILL ANALYSIS


C.S.H.B. 729
By: Goodman
Juvenile Justice & Family Issues
Committee Report (Substituted)


BACKGROUND AND PURPOSE 

Under current law, there are no provisions regulating an agreement between
a gestational mother and the intended parents.  Without regulation of
these agreements, the legal parent-child relationships of a child of a
gestational agreement may be unclear.  C.S.H.B.729 sets forth provisions
establishing procedures for gestational agreements. 

RULEMAKING AUTHORITY

It is the committee's opinion that  rulemaking authority is expressly
granted to the Texas Department of Health in SECTION 160.763, Family Code,
of this bill. 

SECTION BY SECTION ANALYSIS

Section 1.  Amends Section 160.602, Family Code by adding an intended
parent to the list of persons who have standing to maintain a proceeding
to adjudicate parentage. 

Section 2.  Amends Chapter 160, by adding Subchapter  I, Gestational
Agreements, Family Code, which authorizes an agreement between a woman and
the intended parents of a child in which the woman relinquishes all rights
as a parent of a child conceived by means of assisted reproduction. This
bill further provides that the intended parents become the parents of the
child. (Sections 160.752 and 160.753) 

Adds Section 160.754, Family Code, which authorizes each intended parent,
a prospective gestational mother and her husband, if she is married, and
each donor, if applicable, to enter into a gestational agreement.  This
bill provides that the intended parents must be married to each other;
that the gestational agreement must require that the eggs used in the
assisted reproduction  procedure be retrieved from an intended parent or
donor and not from the gestational mother; and that the gestational
agreement must state that the physician who will perform the procedure has
informed the parties to the agreement of success rates, risks, and
expenses.   

Additionally, C.S.H.B.729 provides that the parties must enter into the
agreement before the 14th day preceding the date the transfer of eggs,
sperm, or embryos to the gestational mother occurs and that a gestational
agreement does not apply to the birth of a child conceived by means of
sexual intercourse.  This bill provides that a gestational agreement may
not limit the right of the gestational mother to make decisions to
safeguard her health or the health of the embryo. 

C.S.H.B.729 further adds Section 160.755 to provide that the intended
parents and the prospective gestational mother are authorized  to maintain
a proceeding to validate a gestational agreement and adds Section 160.756
which establishes provisions for a proceeding to validate the agreement. 

Section 160.757 is added to provide that the proceedings, records, and
identities of the parties to a gestational agreement are subject to
inspection under the same standards of confidentiality that applies to an
adoption.  C.S.H.B.729 further provides that a court that conducts the
proceeding has continuing and exclusive jurisdiction of all matters
relating to the agreement until the date a child born to the gestational
mother under the agreement reaches 180 days of age. 
 
Section 160.759  provides that before a prospective gestational mother
becomes pregnant by means of assisted reproduction, the prospective
gestational mother, or her husband if she is married, or either of the
intended parents may terminate the gestational agreement by giving written
notice to each other party to the agreement. This bill further provides
that notice of the termination must be filed with the court, at which time
the court shall vacate the order validating the agreement.  A prospective
gestational mother and her husband, if she is married, may not be liable
to an intended parent for terminating the agreement, provided the
termination is in accordance with the procedures established under the
bill. 

C.S.H.B.729 additionally requires the intended parents to file a notice of
the birth of a child to a gestational mother with the court not later than
the 300th day after the date assisted reproduction occurred.  After
receiving the notice, the bill requires the court to render an order that
confirms the intended parents are the child's parents, requires the
gestational mother to surrender the child to the intended parents, if
necessary, and requires the bureau of vital statistics to issue a birth
certificate naming the intended parents as the child's parents.  This bill
also requires the court to order scientifically accepted parentage testing
to determine the child's parentage if a person alleges that a child born
to a gestational mother did not result from assisted reproduction (Sec.
160.760). 

Adds Section 160.761 which provides that if a gestational mother is
married after the court renders an order validating a gestational
agreement, the validity of the agreement is not affected, the gestational
mother's husband is not required to consent to the agreement, and the
gestational mother's husband is not a presumed father of the child born
under the agreement. 

C.S.H.B.729 adds Section 160.752 which  provides that a gestational
agreement that is not validated is unenforceable and that the parent-child
relationship under a nonvalidated agreement is determined under current
parentage law.  This bill further provides that an intended parent of a
non-validated agreement may be held liable for the support of a child born
under the agreement, even if the agreement is otherwise unenforceable, and
provides that the court may assess fees and reasonable expenses incurred
in a proceeding regarding a non-validated agreement. 

Under Section 160.763, language is added which requires the Texas
Department of Health to develop and implement a confidential reporting
system that requires each health care facility in this state at which
assisted reproduction procedures are performed under gestational
agreements to report statistics related to those procedures. 

Section 3.  Repeals Section 160.103(d), Family Code.

Section 4.  Requires the Texas Department of Health to implement the
reporting system not later than December 1, 2003. 

Section 5.  (a) This Act takes effect September 1, 2003.  (b) Savings and
transition provisions. 

EFFECTIVE DATE

September 1, 2003. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B.729 modifies the original by removing the provision that a
gestational agreement may not provide for the payment of consideration.
C.S.H.B.729 removes the provision that requires the court to find that the
amount paid for the gestational mother's expenses is reasonable.
C.S.H.B.729 removes the offense provisions regarding payment of
consideration and advertising.